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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50158
Experience:  Qualified Employment Solicitor
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I am a partner in a small family run business, we have

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Hello, i am a partner in a small family run business, we have an employee who has some personal issues and is struggling to keep them off the shop floor. She has been involved in several outbursts on the shop floor involving several people. There has never been an official complaint made as the directors (two of them) have always put the responsibility back on managers and made excuses for her such as personal/private problems. She is highly valued by one of these directors in particular and is given a lot of special treatment, that other employees are not given or allowed to do contractually. There are now 3 partners (myself included) under these two directors that have had issues with her as well as 3 other employees. It is at the point were i feel she is given to much space to do and act as she feels. It feels like we are back at school and the first person to cry and cause a scene gets there way. This employee despite being nearly 40 is always that person as she is the one that has exploded and caused the biggest scene. I feel even as a manager and partner that I have to walk on egg shells as outbursts and come from nowhere. I feel bullied sometimes, I feel lack of respect and on days she's is working I feel like I am not welcome. It is at the point were myself and several others want to leave the business because of her behaviour because we don't see a solution. Thanks for any help you can provide.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me how long she has been employed by your firm and has she recived any warnings around her behaviour please.
Customer: replied 2 years ago.

Hi Ben,

she has been employed for a number of years I don't have the official records but she is was first employed in 2009/2010 i think as a coffee shop assistant and has continued to work part time (2-3 half days a week) since. she has been on maternity leave during that time. She has not as she is effectively a directors favourite.

Thank you for that information please leave this with me and I will get my advice ready for you on how to proceed with this. I will get back to you ASAP There is no need to wait on here I will email you when ready regards Ben.
Thanks for your patience. The issue in such circumstances is that the final decision rests with the employer (or at least those people responsible for making the big deciding in the business, such as disciplining or dismissing). However, you can make your position and complaints very clear, even going to a point where you all make a group complaint and you could even make an ultimatum that the employer has to take this seriously or you would all walk out. I know this may seem drastic but if all has failed so far then it could be what it takes to progress things.
You can all raise a grievance against this employee, either personally or as a group. I would say that doing it as a group could be better as then the employer cannot just individually ignore you or treat you detrimentally if they think you are unnecessarily raising the complaints. Also if the business is faced with a few people walking out at once, they would need to seriously consider whether it is still worth protecting an employee who clearly has some issues and causing problems from time to time.
It may not necessarily end up in them removing her from the business, but at least they could discuss the concerns with her and maybe issue her with a warning of her behaviour. With continuous failures to resolve these issues it may eventually end up in dismissal.
If you were to leave, then the only thing you could potentially look at is constructive dismissal, which occurs when the following two elements are present:
• Serious breach of contract by the employer; and
• An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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